Robbing Sanjay to pay Xuan

March 22, 2013 | By RALPH KASARDA

Useful innocent? Useful idiot?  No, just uninformed.  At least that appears to be the explanation for a contractor who expressed delight with a court ruling that allows the government to continue its racial discrimination . . . against him.

In 2011, a federal district court judge for the Eastern District of California upheld a California Department of Transportation (Caltrans) program that mandated the granting of race- and sex-based preferences to some minority groups – but not others – in the award of certain federally-assisted subcontracts.  Among those minority groups that did not receive favorable race-based preferences were economically disadvantaged male Hispanic Americans and “Subcontinent Asian” Americans.  Subcontinent Asian Americans include persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal and Sri Lanka.

It was recently brought to my attention by this ACLU article that at least one Subcontinent Asian American engineer agreed with the court’s decision.  He believes “there [is] discrimination in the engineering sector.”  So he went through the trouble of having his structural engineering firm certified as a Disadvantaged Business Enterprise (DBE) under the assumption that he would receive a racial preference to “open new doors” for his firm.  Instead, and apparently without his knowledge, Caltrans slammed the door in his face.  Sadly, it appears that no one, not even the ACLU, ever bothered to inform him that the Caltrans program he supports actually requires prime contractors to  discriminate against him, and that a judge’s ruling invalidating the program – as PLF attorneys requested – would have ended that discrimination.

In approving Caltrans’ selective use of racial preferences, the court found that the state’s curious statistical manipulations justified the unequal treatment of subcontractors.  But don’t look for the judge’s decision on Westlaw or Lexis, he didn’t write one.  The convoluted methods that Caltrans used to justify its program can be found here, here, and here.

While the Ninth Circuit ponders the district court’s order, Caltrans will continue to Balkanize the transportation construction and engineering industries with a new 2013 program mandating more discrimination to end discrimination.  That policy flies in the face of the sentiment expressed by Chief Justice John Roberts in a 2007 case, that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There is no need to be uninformed.  To that engineer referenced in ACLU’s post, and anyone else wondering what the new Caltrans program means:  Call me.